Heini Wathen-Fayed v Secretary of State for Levelling Up, Housing and Communities

In a challenge to a planning appeal decision, statutory restrictions affecting the lawful implementation of development may be material where deliverability underpins the case for very special circumstances. The decision-maker must address the principal important controversial issues, but need not answer every argument expressly where the reasoning permits an informed reader to understand the conclusion.

For the Cremation Act 1902, “everything incidental or ancillary” to a crematorium means matters operative in the process of burning human remains. It does not ordinarily include access roads, car parks, ornamental gardens or arrangements for sealed storage of ashes, absent evidence that they play an operative part in that process.

The sequential flood-risk test may be unnecessary for development in Flood Zone 1 where the decision-maker properly considers other flood risks, available evidence and effective conditional controls.

The claimant sought under section 288 of the Town and Country Planning Act 1990 to quash an inspector’s decision allowing an appeal and granting permission for a crematorium in the Metropolitan Green Belt.

Two grounds were advanced. First, the inspector was said to have failed to consider, or misinterpreted, the separation restrictions in section 5 of the Cremation Act 1902, particularly as they might apply to access roads, parking areas, memorial gardens, ashes and doors or windows. Secondly, the inspector was said to have wrongly concluded that a sequential flood-risk assessment was unnecessary and that no reasonable alternative sites existed.

The central questions were whether the inspector had adequately considered the material implementation issues and whether his conclusions on statutory construction, flood risk and the sequential test were lawful.

1. Ground 1 dismissed. The ability to implement the development without contravening section 5 of the Cremation Act 1902 was a material consideration because the development’s ability to meet a pressing community need supported the case for very special circumstances. The inspector considered that issue and gave adequate and intelligible reasons.
2. Under section 2 of the 1902 Act, the phrase “everything incidental or ancillary thereto” is construed purposively. It refers to anything incidental or ancillary to the process of burning human remains, rather than every component of a crematorium facility. The legislative context included the Act’s purpose of regulating cremation and protecting public health.
3. On the evidence, access roads and car parks had no operative part in burning human remains. The proposed memorial gardens were not to be used for scattering or burial of ashes; sealed storage pending removal would take place after the cremation process. Those elements therefore fell outside the extended definition of “crematorium” and were not subject to the 200-yard restriction. Doors and windows did not materially affect the burning process either.
4. Ground 2 dismissed. The inspector correctly understood the Framework and Practice Guidance. Flood Zone 1 did not automatically remove the need for a sequential test, because groundwater and other sources of flooding had to be considered. However, the inspector was entitled, in planning judgment, to take into account the SFRA, the proposed site investigation and drainage arrangements, the absence of objection from the Lead Local Flood Authority, the objectors’ evidence and condition 6. His conclusion that the test was unnecessary was neither irrational nor inadequately reasoned.
5. Consideration of alternative sites was unnecessary once the inspector lawfully concluded that the sequential test did not apply. The claim was dismissed.